Dixon

—Respondent, while walking upon the sidewalk of Larkin Street, in the city of San Francisco, was struck *385 upon the head and quite seriously injured by a chisel that fell from a scaffolding above, upon which one of appellant’s employees was standing while engaged in affixing a cornice to the building. Damages were recovered in the lower court, and the appeal is from the judgment and an order denying a new trial. This case was decided in Department, and the judgment and order reversed upon the ground that the verdict was arrived at by chance. The question involved being an important one, and there being some decisions of this court opposed to the doctrine there laid down, which had not been noticed in the opinion, the case was ordered to Bank for further consideration.

Appellant moved for a new trial upon the ground of misconduct of the jury in this, that they arrived at their verdict by a resort to the determination of chance. The code expressly provides that such misconduct may be shown by the affidavits of jurors (see. 657, Code Civ. Proo.), and in support of the motion appellant presented the affidavit of one Koster, a juror, wherein he stated;. "That upon retiring to the…